Opinion Number: 1999-NMCA-151
Filing Date: November 5, 1999
Docket No. 19,476
DEBORAH SMITH, Individually
and as Next Friend of her Daughter,
Kristyn Smith,
Plaintiff-Appellee,
v.
VILLAGE OF RUIDOSO, a
Municipal Corporation,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Karen L. Parsons, District Judge
Charles E. Hawthorne
Charles E. Hawthorne, Ltd.
Ruidoso, NM
for Appellee
Richard E. Olson
Karolyn King Nelson
Hinkle, Cox, Eaton, Coffield & Hensley, L.L.P.
Roswell, NM
for Appellant
{1}
The Village of Ruidoso appeals the general jury verdict
awarding damages in favor of Plaintiff's minor daughter,
Kristyn, for dog-bite injuries inflicted by a narcotics-detection dog owned by the Village Police Department. The
Village raises four issues: whether the trial court erred
(1) in instructing the jury under UJI 13-506 NMRA 1999, a
strict liability dog-bite instruction; (2) in submitting
Plaintiff's contract claim to the jury; (3) in submitting
Plaintiff's claims for future pain and suffering; and
(4) awarding mediation fees as costs. We conclude that the
trial court erred in instructing the jury under UJI 13-506,
because that instruction does not state a negligence theory of
recovery as required under the Tort Claims Act; in submitting
Plaintiff's contract claim to the jury; and in awarding
mediation fees as costs. We reverse and remand for a new trial in negligence.
BACKGROUND
{2}
As Kristyn Smith walked down the block after school,
Fanta attacked and bit her in the face. The resulting
lacerations required stitches, a scar revision, and two
dermabrasion procedures that were performed by a plastic
surgeon, leaving a scar.
{3}
Fanta, a German Shepard, was owned by the Department.
When the Department acquired Fanta, the Department issued a
press release announcing the addition of Fanta "to the staff"
of the Department. The release also said that Fanta was "a
Commissioned member of the Department," who would be seen with
her "human partner," Officer Layher.
{4}
Fanta lived with Officer Layher. The Layher property was
posted with a sign that read, "Caution/Police Dog." On the
afternoon of the accident, the officer was getting ready to go
to work. When he heard his wife come in the house, he
hollered something to her about putting Fanta in the car.
Apparently, when Fanta heard the word "car," she reacted with
her typical enthusiasm for work and dashed to the front door.
Eluding Mrs. Layher's attempt to grab her collar, Fanta ran
out of the house and into the street, where she proceeded to
attack Kristyn, who happened to be walking by at that moment.
{5}
Officer Layher contacted Kristyn's mother, Deborah Smith
(Plaintiff), who then took Kristyn to the hospital for
treatment. The Police Chief went to the hospital and
indicated to Plaintiff and the hospital administrator that the
Department would pay Kristyn's medical bills, saying that the
Department would "take care of it." The Chief's written
report of the incident states that he "advise[d] that medical
costs would be assumed by the Ruidoso Police Department." In
a letter to a third party, the Chief wrote: "arrangements
have been made to assume Kristyn's total medical expenses."
The Department paid for Kristyn's medications and her initial
treatment at the hospital, but did not pay any of the other
medical bills incurred in Kristyn's treatment.
{6}
Plaintiff sued the Village, claiming that the
Department's negligent training, handling, control, and
storing of Fanta constituted negligent maintenance and
operation of police equipment under the Act; that the
Department breached its contract with Plaintiff when it failed
to pay Kristyn's medical bills; and that the Chief
misrepresented that the Department would pay Kristyn's medical
bills. Plaintiff sought damages for medical expenses, as well
as for past and future pain and suffering, and disfigurement.
{7}
The trial court granted summary judgment in the Village's
favor on the misrepresentation claim and denied the motion as
to Plaintiff's negligence and contract claims. At trial, the
court gave UJI 13-506 (liability of dog owner) together with
an ordinary care instruction, but did not give any instruction on negligence. The jury returned a general verdict awarding
$50,000 to Plaintiff. Plaintiff filed a motion to recover her
costs, including the cost of a voluntary pretrial mediation.
Over the Village's objection, the trial court awarded $708.91
for the pretrial mediation. The Village appeals.
DISCUSSION
I. DOG-BITE LIABILITY
{8}
The instruction at issue in this case, UJI 13-506,
embodies New Mexico's doctrine of liability of dog owners for
injuries caused by vicious dogs. The instruction reads:
An owner of a dog is liable for damages
proximately caused by the dog if the owner
knew, or should have known, that the dog was
vicious or had a tendency or natural
inclination to be vicious.
[The owner of such a dog is not liable to
the person injured, if the injured person had
knowledge of the propensities of the dog and
wantonly excited it or voluntarily and
unnecessarily put himself in the way of the
dog.]
{9}
The Village argues that UJI 13-506 includes elements of
strict liability and that under the Tort Claims Act, NMSA
1978, Section 41-4-2(B) (1976), the state and governmental
entities are immune from claims grounded on strict liability.
Thus, the Village asserts that reversal of the judgment
against it is required as a matter of law. To overcome
governmental immunity, Plaintiff relies on NMSA 1978, Section
41-4-6 (1977) of the Tort Claims Act, which waives immunity
for negligence in the operation or maintenance of equipment.
It reads:
The immunity granted pursuant to
Subsection A of Section 41-4-4 NMSA 1978 does
not apply to liability for damages resulting
from bodily injury, wrongful death or property
damage caused by the negligence of public
employees while acting within the scope of
their duties in the operation or maintenance
of any building, public park, machinery,
equipment or furnishings. Nothing in this
section shall be construed as granting waiver
of immunity for any damages arising out of the
operation or maintenance of works used for
diversion or storage of water.
Under Section 41-4-6, Plaintiff must assert and prove a
negligence theory of recovery.
{10}
To prevent Plaintiff's claim, the Village relies on both
the Act's bar to strict-liability claims and on the State's immunity from claims not sounding in negligence. New Mexico
has not waived its immunity to permit claims in strict
liability. "The Tort Claims Act in no way imposes a strict
liability for injuries upon governmental entities or public
employees." Section 41-4-2(B); see also Saiz v. Belen Sch.
Dist., 113 N.M. 387, 402, 827 P.2d 102, 117 (1992). We must
decide whether UJI 13-506 is a negligence theory. If UJI 13-506 is not a negligence theory, we must then decide whether
that resolves the liability issue before us.
A. UJI 13-506 Is Not a Negligence Instruction
{11}
The language of UJI 13-506 contains aspects of both
negligence and strict liability. The instruction imposes
liability on a dog owner without regard to the owner's
exercise of ordinary care in taking precautions to prevent the
harm. In this way, the instruction resembles strict
liability. See Saiz, 113 N.M. at 402, 827 P.2d at 117 ("The
feature of strict liability that distinguishes it from
negligence is that the reasonableness of acts or omissions of
the party to be charged . . . is not a consideration."). On
the other hand, the instruction also requires proof that the
owner knew or should have known that the dog had vicious
propensities before the owner may be held liable for any
injuries the dog causes. This language is often used in
considering negligent conduct.
{12}
The trial court also instructed the jury on ordinary
care. It appears that the parties drew upon language in
Perkins v. Drury, 57 N.M. 269, 258 P.2d 379 (1953). Relying
on the common law dog-bite doctrine, Perkins held an owner's
knowledge of his dog's vicious propensity in its relationship
with another dog sufficient to render the owner liable for
injuries inflicted on a child. Id. at 274, 258 P.2d at 382.
The appellate court in Perkins referred to the trial court's
finding that conflated ordinary care and strict liability.
Id. at 272, 258 P.2d at 380 ("[T]he defendant had actual
knowledge, or in the exercise of reasonable care as an
ordinarily prudent person, he should have known of the
propensity toward viciousness on the part of the animal.").
Thus, in the present case, dog-bite liability went to the jury
on only UJI 13-506 with an ordinary care instruction.
{13}
The record is unclear as to how the trial court or the
parties understood the theory or theories of recovery on which
this case was to be decided. On appeal, the Village argues
that the ordinary care instruction was a stray instruction,
yet purposeful in that it "explained the context in which an
owner would know or should know of a dog's dangerous or
vicious propensities." Plaintiff views the combination of
instructions as consistent with her negligence theory of the
case.
{14}
We are convinced that UJI 13-506 is not a negligence
instruction. We reach this decision from an analysis of
decisions in other jurisdictions, the Restatement (Second) of
Torts (1977) (the Restatement), and our Uniform Jury Instructions. See generally Ward Miller, Annotation, Modern
Status of Rule of Absolute or Strict Liability for Dogbite, 51
A.L.R. 4th 446 (1987). Likewise, we are persuaded that UJI
13-506 is a strict-liability instruction.
{15}
Other jurisdictions considering this issue conclude that
dog-bite instructions requiring knowledge before imposing
liability are strict-liability instructions. See, e.g.,
DeRobertis v. Randazzo, 462 A.2d 1260, 1266-67 (N.J. Sup. Ct.
1983) (explaining that under the common law, if a plaintiff
proves scienter, a dog owner is absolutely liable); Westberry
v. Blackwell, 577 P.2d 75, 76 (Or. 1978) (en banc); Arnold v.
Laird, 621 P.2d 138, 140 (Wash. 1980) (en banc); Abelseth v.
City of Gillette, 752 P.2d 430, 433 (Wyo. 1988); cf. Kyle v.
Commonwealth, No. 9201635, 1994 WL 879700 (Mass. Super. Ct.
June 10, 1994) (holding Commonwealth immune from dog-bite
action brought under statute imposing liability without
scienter).
{16}
In addition, Section 509 of the Restatement, which
contains language essentially the same as our UJI 13-506, is
considered by its authors to be a strict-liability theory.
Under Section 509(1), the "possessor of a domestic animal that
he knows or had reason to know has dangerous propensities
abnormal to its class, is subject to liability for harm done
by the animal to another, although he has exercised the utmost
care to prevent it from doing the harm." Comment i to
Section 509 describes this section as imposing strict
liability.
{17}
"Negligence" is specifically defined in two UJIs. One is
UJI 13-908 NMRA 1999, relating to the Federal Employer's
Liability Act. The other, UJI 13-1601 NMRA 1999, relates to
negligence "of all persons." Both instructions contain the
words "ordinary care." "Ordinary care" is defined in UJIs 13-910 and 13-1603 NMRA 1999. The ordinary care instruction
contained in UJI 13-1603 is available for use in conjunction
with various instructions that, unlike UJI 13-506, contain the
words "ordinary care."See footnote 1 UJI 13-506 neither defines a
particular duty of care nor requires the jury to be instructed
on ordinary care, as do negligence-related instructions.
{18}
In sum, UJI 13-506 is not a negligence theory of
recovery. Rather, UJI 13-506 imposes strict liability once
knowledge is proven. UJI 13-506 cannot be given to the jury
in an action for relief under the Section 41-4-6 waiver of
immunity because UJI 13-506 does not embody a negligence
theory of recovery and because only negligence claims may be
pursued under Section 41-4-6. Consequently, the trial court erred in allowing the jury to consider whether the Village was
negligent under Section 41-4-6 based on the theory of recovery
in UJI 13-506. With UJI 13-506 as the sole liability
instruction given to the jury and with no negligence theory of
recovery properly before the jury as required in Section 41-4-6, the Village was entitled to a directed verdict in its favor
based on immunity under the Act.
{19}
Although we reverse on the submission of UJI 13-506 to
the jury, our review of the dog-bite liability issue is not
yet complete. We must consider whether Plaintiff should be
allowed to sue in negligence. For reasons that we explain
below, we conclude that a dog-bite victim may pursue
negligence claims against a municipality where the victim's
complaint and the evidence bring such a claim within Section
41-4-6. We further conclude that Plaintiff may assert a
negligence claim on remand.
B. Negligence Is a Proper Theory of Recovery for
Injuries From a Dog Bite
{20}
At the time this case was tried, UJI 13-506 appears to
have been the sole theory of dog-bite liability against dog
owners in New Mexico. The decision in Aragon v. Brown, 93
N.M. 646, 603 P.2d 1103 (Ct. App. 1979), forbade negligence
claims in dog-bite cases. In Aragon, a seventeen-year-old boy
was bitten by a friend's St. Bernard in the friend's house.
The boy and his father sued. Over the plaintiffs' objections,
the trial court instructed on theories of negligence,
contributory negligence, and trespass. The jury returned its
verdict for the defense. Plaintiffs appealed, contending that
the trial court erred by giving these instructions. The
plaintiffs argued that the only proper instruction was UJI 5.3
NMRA 1966, which contained New Mexico's dog-bite doctrine.
UJI 5.3 read:
In order for the owner of a dog to be
liable to a person injured, the burden of
proof is on the plaintiff to establish that
the dog was vicious or had a natural
inclination or tendency to be dangerous and
that the owner had knowledge thereof.
In determining the character of the dog,
you may consider evidence of the general
reputation of the dog, as well as evidence of
any prior acts and conduct of the dog.
In determining the knowledge of the
owner, you may consider evidence of the manner
in which the owner maintained the dog, his
knowledge of prior acts and conduct of the
dog, and any previous warnings issued to
others by the owner.
("The owner of such a dog is not liable
to the person injured if the injured person has knowledge of the character of the dog and
wantonly excites it or voluntarily and
unnecessarily puts himself in the way of the
dog.")
{21}
UJI 5.3 was given in Aragon at the plaintiffs' request;
negligence, contributory negligence, and trespass instructions
were given at the defendant's request. Aragon held that the
trial court erred in giving the negligence, contributory
negligence, and trespass instructions. These instructions,
the Court said, injected false issues into the case, which
"could only have confused the jury." Id. at 647, 603 P.2d at
1104.
{22}
Aragon disposed of the entire issue of the propriety of
negligence as a theory of recovery in one paragraph, with
little explanation. The Court held that the use of UJI 5.3
was mandatory and that "[t]he instruction states the entire
law of liability and relief from liability in connection with
dog-bite injuries" and "encompasses all the necessary elements
of determining liability or non-liability in dog-bite cases."
Id.
{23}
The significance of Aragon to the case before us is that
if, in a dog-bite case using UJI 13-506, a plaintiff is
precluded from presenting a negligence claim to the jury, then
that plaintiff would not be able to sue under the Act and
would be left without a remedy even where the governmental
entity may be negligent. But Aragon does not bind us here
because the procedural posture in Aragon is significantly
different than that before us today. See Bogle Farms, Inc. v.
Baca, 1996-NMCA-051, ¶¶ 19-20, 122 N.M. 422, 925 P.2d 1184
(suggesting that cases in a different procedural posture are
not authority for the case at bar). Unlike the case before
us, the defendant--not the plaintiff--in Aragon sought the
negligence instruction, as well as the instruction on
contributory negligence. The plaintiff in Aragon did not
assert or want to pursue a negligence theory of recovery. See
Enriquez v. Cochran, 1998-NMCA-157, ¶ 71, 126 N.M. 196, 967
P.2d 1136 (explaining that "a defendant cannot require that an
instruction on a particular theory of liability be given over
plaintiff's objections"). At the time of Aragon, contributory
negligence barred a plaintiff's recovery. The court's and
parties' considerations were focused on theories of recovery
and defenses different than those in the present case.
Because Aragon was presented to the court in a significantly
different way and involving a significantly different law of
negligence (contributory rather than comparative) than the
case we must decide and the law of negligence today, its
holding is not binding in this case. To the extent Aragon may
be read to preclude a negligence claim against a dog owner, it
is overruled.
{24}
We can think of no persuasive reason why a negligence
theory of recovery for harm caused by dog bites should not be
available to victims of such harm when circumstances
justifying such a claim exist. Common law negligence applies in New Mexico. See UJI 13-1601. Aside from Aragon, which is
not binding, owners of dogs that attack or bite are nowhere
specifically excluded from the reach of the law of negligence
in New Mexico.
{25}
Several jurisdictions have applied common law ordinary
negligence as well as negligence in the control or confinement
of domestic animals (mainly horses) in dog-bite circumstances.
See, e.g., Williams v. Johnson, 781 P.2d 922, 923 (Wyo. 1989);
Beeler v. Hickman, 750 P.2d 1282, 1286 (Wash. Ct. App. 1988);
Chambliss v. Gorelik, 191 N.W.2d 34, 37 (Wis. 1971); see also
Nelson v. Hansen, 102 N.W.2d 251 (Wis. 1960) (interesting
discussion of the issues).
{26}
In addition, jurisdictions that have followed the common
law dog-bite doctrine have adopted Section 518 of the
Restatement, which recognizes that a dog owner can be liable
in negligence for harm caused by the owner's dog even when the
owner had no reason to know that the dog had vicious
tendencies. Section 518 reads:
Except for animal trespass, one who possesses
or harbors a domestic animal that he does not
know or have reason to know to be abnormally
dangerous, is subject to liability for harm
done by the animal if, but only if,
(a) he intentionally causes the animal to
do the harm, or
(b) he is negligent in failing to prevent
the harm.
{27}
Thus, we conclude that a negligence claim is appropriate
where the dog owner lacks knowledge of the dog's vicious
propensities and ineffectively controls the animal "in a
situation where it would reasonably be expected that injury
could occur." Arnold, 621 P.2d at 141; see also DeRobertis,
462 A.2d at 1266 ("If either the dog is not vicious or the
owner does not know of its vicious propensities, then
negligence, not absolute liability, applies."); Griner v.
Smith, 259 S.E.2d 383, 388 (N.C. Ct. App. 1979) ("The owner of
a domestic animal is chargeable with knowledge of the general
propensities of certain animals and he must exercise due care
to prevent injury from reasonably anticipated conduct.");
Westberry, 577 P.2d at 76 ("Failure to confine or control . .
. can give rise to a cause of action in negligence.").
{28}
A law enforcement officer, being a public employee, can
be sued for negligent conduct in the operation or maintenance
of any motor vehicle, aircraft, or watercraft, under NMSA
1978, Section 41-4-5 (1977), see Wilson v. Grant County, 117
N.M. 105, 106, 869 P.2d 293, 294 (Ct. App. 1994), and can also
be sued for personal or bodily injury resulting from assault,
battery, or the other enumerated tortious conduct under NMSA
1978, Section 41-4-12 (1977), see Methola v. County of Eddy,
95 N.M. 329, 333-34, 622 P.2d 234, 238-39 (1980); Caillouette v. Hercules, Inc., 113 N.M. 492, 496, 827 P.2d 1306, 1310 (Ct.
App. 1992). Law enforcement officers may also be sued for
negligence in "the operation or maintenance of . . .
equipment" under Section 41-4-6.See footnote 2 If the evidence admitted
during retrial supports a negligence theory of recovery, then
an instruction consistent with the applicable portions of
Section 518 should be given to the jury. Absent direction to
the contrary, civil decisions of this Court are presumed to
operate retroactively. See Stein v. Alpine Sports, Inc.,
1998-NMSC-040, ¶ 7, 126 N.M. 258, 968 P.2d 769. In the
present case, we believe it is appropriate that our decision
today be applied retroactively such that Plaintiff will be
able to assert a negligence claim on remand.
II. THE CONTRACT CLAIM
{29}
The jury was instructed that "[i]n this case, the parties
agree that Chief Swenor indicated the Village of Ruidoso would
pay the medical expenses at Lincoln County Medical Center.
What is in dispute is whether a binding contract was made
between the parties, and, if so, the terms of that contract."
{30}
The Village argues that the Chief's verbal and written
statements that the Department would pay Kristyn's medical
bills were gratuitous, that there existed no bargained-for
exchange and, therefore, no consideration to support the
formation of a contract. Plaintiff argues that the Chief's
statements constituted an offer, that the offer was accepted
when Plaintiff submitted the bills to the Village, and that
mutual assent resulted when the Village paid all of the
expenses incurred up to a certain point.
{31}
Plaintiff characterizes the alleged contract as a
unilateral contract, citing Strata Prod. Co. v. Mercury
Exploration Co., 1996-NMSC-106, 121 N.M. 622, 916 P.2d 822.
Strata Production involved a contract dispute over a written
farmout agreement that provided for one party's acceptance by
performance, namely, drilling a certain test well. The court
held that this agreement was "a traditional unilateral
contract, in which the offeror makes a promise in exchange,
not for a reciprocal promise by the offeree, but for some
performance." Id. at 627, 916 P.2d at 827. In the present
case, the Chief's statement that the Department would take
care of the charges was not a promise in exchange for some
performance by Plaintiff; it was not a unilateral contract.
{32}
We agree with the Village that there was no consideration
to support the formation of a contract.
{33}
Consideration is essential to the enforcement of a
promise. See Romero v. Earl, 111 N.M. 789, 791, 810 P.2d 808,
811 (1991). Consideration is the bargained-for exchange between the parties. See id. (explaining that consideration
must be "bargained for by the parties. Something is bargained
for 'if it is sought by the promisor in exchange for his
promise and is given by the promisee in exchange for that
promise.'") (citation omitted, quoting Restatement (Second) of
Contracts § 71 (1979)). Thus there will be no consideration
if there is no bargaining and exchange.
{34}
This case falls into the "most significant class of
promises unenforceable for lack of consideration[:] purely
gratuitous (or gift) promises--promises for which there has
been no exchange at all." 1 E. Allan Farnsworth, Farnsworth
on Contracts § 2.5, at 81 (2d ed. 1998); see also 2 Joseph M.
Perillo and Helen Hadjiyannakis Bender, Corbin on Contracts
§ 5.2, at 17 (rev. ed. 1995) (explaining that "consideration
is designed primarily to protect the promisor from being
compelled to perform donative promises"). Here, there was no
bargaining, and no exchange between the parties: The Village
neither sought nor received anything from Plaintiff in return
for its promise to pay Kristyn's medical bills.
{35}
Plaintiff argues that she agreed to forbear from filing
suit against the Village in exchange for the Village's promise
to pay Kristyn's medical bills. Although forbearance may
amount to consideration in some cases, it will only serve as
consideration where there is "either an express agreement to
forbear . . . or where the circumstances otherwise suggest
that a contract ought to be enforced by implying such an
agreement." Spray v. City of Albuquerque, 94 N.M. 199, 200-01, 608 P.2d 511, 512-13 (1980). Here, when the Chief told
Plaintiff that the Department would take care of the medical
bills, the parties did not discuss forbearance from suit at
all, let alone come to an express agreement. Because nothing
in the circumstances surrounding the making of the promise
suggests anything but generosity or a simple sense of moral
obligation on the part of the Village when making its promise
to pay, we will not imply an agreement to forbear. See 17A
Am. Jur. 2d Contracts § 168 (2d ed. 1991) ("The general rule
is that a mere moral obligation, without anything more, is not
a sufficient consideration for an executory promise.").
Because there existed no bargained-for exchange to obligate
the Village to pay Kristyn's medical expenses, we hold that no
enforceable contract was formed.
{36}
We note that the Village alludes to lack of mutual assent
as another ground for reversal. We will not address mutuality
because the Village did not provide authority or argument to
support its position. See In re Adoption of Doe, 100 N.M.
764, 765, 676 P.2d 1329, 1330 (1984) ("to present an issue on
appeal for review, an appellant must submit argument and
authority").
{37}
In the Village's motion for judgment notwithstanding the
verdict, the Village sought relief on the ground, among
others, that the trial court erred in submitting the contract
issue to the jury. The court's order denying the motion
stated:
6. Even if it was error to instruct the
jury on the contract theory, it was harmless
error insofar as the jury was thoroughly
instructed that if they found that the
Defendant was liable for breach of contract,
they could find damages to the Plaintiff only
to the extent of unpaid medical bills.
7. It is clear from the jury's verdict,
they did not consider the liability against
the Defendant as being one of breach of
contract, but of personal injury instead.
The record shows that Plaintiff sought $2,378.65 in unpaid
medical bills. The verdict was for $50,000. Although the
even $50,000 amount of the verdict might give the impression
that the jury may not have included the medical bills, and
thus may have rejected the contract theory, we do not accept
that conclusion. The jury could have included the medical
bills in the verdict. Because the jury should not have been
instructed on Plaintiff's contract claim, and because the jury
could have awarded contract damages in this case, we also
reverse on this issue. See Hoggard v. City of Carlsbad, 121
N.M. 166, 171, 909 P.2d 726, 731 (Ct. App. 1995) (holding that
remand is required when a party submits alternative theories
for relief, but only submits a general verdict form, and, when
the appellate court finds insufficient evidence of one
theory).
III. AWARD OF DAMAGES FOR
FUTURE PAIN AND SUFFERING
{38}
The Village contends that Plaintiff failed to present a
medical expert's opinion that Kristyn would endure either
physical or emotional pain or suffering in the future. As a
result, the Village argues the trial court erred in allowing
the jury to consider an award of damages for future pain and
suffering.
{39}
In particular, the Village contends that the future pain
and suffering from Kristyn's scar and scar revision procedures
are subjective and not apparent from the injury itself, and
therefore require expert medical testimony. See Rael v. F &
S Co., 94 N.M. 507, 511-12, 612 P.2d 1318, 1322-23 (Ct. App.
1979) (reasoning that expert medical testimony is required to
justify an instruction on future pain and suffering where the
injury is subjective). During the settling of jury
instructions, the Village argued only that the evidence of
future pain and suffering was insufficient. The Village did
not argue that medical expert testimony was necessary to prove
future damages. At oral argument, the Village raised another
issue not addressed at trial, that is, whether the trial court
erred in permitting the jury to consider both disfigurement
and future pain and suffering. The Village failed to preserve
these arguments for appellate review, and we therefore decline
to address them. See Woolwine v. Furr's, Inc., 106 N.M. 492,
496, 745 P.2d 717, 721 (Ct. App. 1987).
IV. AWARD OF COSTS
{40}
The prevailing party in a civil action is to be awarded
costs unless the court orders otherwise for good cause shown.
See NMSA 1978, § 39-3-30 (1966). In addition, Rule 1-054(E)
NMRA 1999 allows costs to be awarded. No statute or Supreme
Court rule specifies all of the various types of expenses that
are or are not recoverable as costs. See Dunleavy v. Miller,
116 N.M. 353, 362, 862 P.2d 1212, 1221 (1993) ("[N]either the
rule nor the statute specifies what items may be recovered.").
However, rules of at least one judicial district do specify
recoverable and nonrecoverable costs. See e.g., LR2-302 and
-505 (Second Judicial District); see also Gillingham v.
Reliable Chevrolet, 1998-NMCA-143, ¶ 29, 126 N.M. 30, 966 P.2d
197 (noting that certain expenses are generally not
recoverable under LR2-302 (D)). This action arises out of the
Twelfth Judicial District Court, which has no rule approved by
the Supreme Court that specifies what costs are or are not
recoverable.
{41}
The assessment of costs is entrusted to the sound
discretion of the court. See Mascarenas v. Jaramillo, 111
N.M. 410, 415, 806 P.2d 59, 64 (1991); In re Adoption of
Stailey, 117 N.M. 199, 203, 870 P.2d 161, 165 (Ct. App. 1994).
We will not interfere with an award of costs, absent a showing
of an abuse of discretion. See Stailey, 117 N.M. at 203, 870
P.2d at 165. However, the court's discretion is not
unlimited. See Tedford v. Gregory, 125 N.M. 206, 216, 959
P.2d 540, 550 (Ct. App. 1998). The court has discretion to
award necessary and reasonable costs incident to the
prosecution or defense of the action. See Dunleavy, 116 N.M.
at 362-63, 862 P.2d at 1221-22; Gillingham, 1998-NMCA-143,
¶ 29. But that discretion is to be exercised sparingly "when
considering expenses not specifically authorized by statute
and precedent." Dunleavy, 116 N.M. at 363, 862 P.2d at 1222;
Gillingham, 1998-NMCA-143, ¶ 29. If a trial court taxes
unusual items as costs, it should explain the circumstances
justifying the award. See Gillingham, 1998-NMCA-143, ¶ 29
(requiring the trial court to "explain[] the unusual nature of
the circumstances" justifying the award); Lopez v. American
Airlines, Inc., 1996-NMCA-088, ¶ 14, 122 N.M. 302, 923 P.2d
1187 (requiring the trial court to state the reasons for
taxing unusual items as costs).
{42}
Plaintiff and the Village agreed to attempt settlement
through mediation and retained a mediator. The mediation did
not result in settlement. After Plaintiff prevailed at trial,
she requested the trial court to award, and the court did
award, her share of the mediator's fee. The record does not
disclose whether this expense was unusual as an item of cost
or the circumstances justifying the award. No reported New
Mexico decision has addressed whether a mediator's fee may be
taxed as a cost and no statute controls. We agree with the
Village that the mediator's fee should not, in this case, be
taxed as a cost, and we reverse on this issue.
{43}
The mediation was conducted pursuant to the agreement of the parties, not by order of the court. We do not think that,
with respect to mediations conducted pursuant to an agreement
of the parties, the expense of the mediator's fee should be a
recoverable cost, absent an enforceable agreement permitting
the award of the mediator's fee expense as a cost. This view
fits with the Supreme Court's reluctance, as well as our own,
to expand the list of recoverable costs, and our admonitions
to trial courts to carefully, cautiously, and sparingly
exercise their discretion when considering expenses not
authorized by statute or precedent. See, e.g., Dunleavy, 116
N.M. at 362-63, 862 P.2d at 1221-22. We do not address the
question of whether the expense of a mediator's fee is an
awardable cost in court-ordered mediations.
CONCLUSION
{44}
The common law dog-bite doctrine embodied in UJI 13-506
does not sound in negligence. Therefore, the Village is
immune from an action based on that recovery theory. However,
Plaintiff is entitled to pursue a negligence claim against the
Village under Section 41-4-6 on remand.
{45}
The trial court erred in submitting Plaintiff's contract
claim to the jury because Plaintiff failed to prove the
existence of an enforceable contract. Also, the trial court
erred in awarding the mediator's fee as an item of cost.
Finally, the trial court properly allowed the jury to consider
damages for future pain and suffering.
{46}
Plaintiff is awarded her costs on appeal. We reverse and
remand for a new trial consistent with our opinion.
{47}
IT IS SO ORDERED.
_______________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
____________________________________
THOMAS A. DONNELLY, Judge
____________________________________
M. CHRISTINA ARMIJO, Judge